Flawed Crown policy contributes to clogged courts

A recent jury trial over allegations of domestic abuse should have never seen the courtroom, Toronto criminal lawyer Kevin Hunter says.

While he is pleased with the verdict, Hunter, an associate with Edward H. Royle & Associates, says there weren’t reasonable grounds to charge his client in the first place.

“It’s somewhat of an indictment on the Crown’s decision to proceed on a case like this in spite of the suspicious circumstances which surrounded both the nature and timing of the complaints,” says Hunter. “It’s at the expense of a two-week Brampton jury trial in a jurisdiction which is already having trouble accommodating trials with actual merit.”

Hunter’s client, a father of four, was found not guilty of 2 charges of domestic assault and mischief.

“The family had a long history with the Children’s Aid Society (CAS), dating back to 2001,” says Hunter.

In May 2010, the couple had long separated, and the children were living with their mother. Based on comments one of the kids made at school, the CAS began investigating again, he says.

After the CAS investigation, the woman made the abuse allegations against her husband, and reported the information to police with the encouragement of the CAS, says Hunter.

“My first thought was the timing of the police report was suspicious given that it was made on the same day that the CAS told her that she should report the allegations to police. I began to think she was deflecting blame away from herself and on to my client because she was fearful of losing her kids, as had happened before.”

Hunter had also obtained a sworn affidavit from a prior court proceeding involving child custody issues, where the woman admitted to making false allegations in the past.

At the trial, says Hunter, the mother, father and children testified, and while the children claimed to have witnessed the alleged assaults, they later admitted their mother had told them what to say. After a short period of deliberation, the jury came back with a not-guilty verdict.

“My client was relieved to have the false accusations against him determined in his favour, and the jury saw that the person making the allegations was essentially a liar with a clear motive to fabricate.”

The outcome was favourable for Hunter and his client, but the case represents a larger issue, he says.

“My reaction was this never should have been in court to begin with,” he says.

A former police officer himself, Hunter says he has concerns over a government policy that mandates police to lay a charge where they have reasonable grounds to believe an offence has been committed in a domestic relationship.

“There’s got to be something more than the story of someone claiming criminal conduct against a former partner in circumstances where there’s no photographic, documentary, or independent testimonial evidence which might show injuries or a hospital visit … all the police have to go on is somebody’s story,” says Hunter. “The police have to employ a little more scrutiny on these types of cases and not just to proceed based on what someone says.”

The “constant delay and overburdening issue” in the courts makes the situation more crucial, says Hunter.

“I think if the police investigated the incident thoroughly, they would have had some doubt about the authenticity of the complaints, especially given their timing,” he says. “Had the officers really scrutinized what the children said, they would have seen that they were clearly influenced by their mother to perpetuate her lies.”

Hunter says the policy puts officers in a difficult position: “They are fearful that if they don’t lay a charge, they could face negative sanctions, so they err on the side of caution of laying a charge.”

If a charge isn’t laid and a complainant is subsequently badly injured or killed, the officer is then “on the hook for their decision,” says Hunter. Instead, officers “pass on the responsibility of making a decision to the Crown – it’s a safety-first, liability-based policy.”

While he was happy with the result of the trial, Hunter says he feels it was a shameful waste of ever diminishing court resources.

“The real losers here in the end, other than the court system being clogged, are the kids who have to go into court and testify,” he says. “They testified from a separate room via video, but they had to come and tell their manipulated stories against their dad again, and it just became very obvious that mom had fed them information about what to say. That’s really unfair to both my wrongfully accused client accused and more so to his kids."